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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

THOMAS KITHIER,
Case No: 17-14227

Plaintiff, HON. MARIANNE BATTANI

v

MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION,

CHIPPEWA VALLEY SCHOOLS, ROB ROBERTS, PAUL
SIBLEY, MICHAEL FUSCO, THOMAS RASHID, JOHN E.
ROBERTS,
Jointly and Severally,

Defendants. /

PLAINTIFF’S REPLY TO DEFENDANT’S RESPONSE TO

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

In response to Plaintiff’s Motion for Preliminary Injunction, Defendant

Chippewa Valley offers this Court a variety of arguments that share one thing in

common: their lack of merit. Plaintiff will address Defendant’s arguments in turn.

A. Defendants continue to mischaracterize the facts to defame Thomas

Very briefly, Plaintiff notes that Defendants’ response continues the same

injustice that necessitated the litigation: without any factual support, Defendant

baldly asserts that Plaintiff transferred from Macomb Dakota for purely athletic

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reasons. The falsity of that statement will be made abundantly clear as the parties

proceed with discovery. In the meantime, however, it should be recognized that the

only record evidence that currently exists in this case tends to prove that it is

Defendants, not Plaintiff, that valued athletics over academics.

Each of the Defendants in this case is an individual or an entity that is

entrusted with the education and development of children and young adults. The

evidence shows that while Thomas was attempting to focus on academics, he was

being pulled from classes so that grown adults could pursue their own best interest

be trying to negotiate with him regarding his basketball future. At the same time,

agents and employees of MHSAA, without any knowledge of the situation, were

encouraging other adults to punish Thomas. Now, because Thomas made a decision

that the Defendants did not benefit from, they are falsely waving the flag of

academics. Had Defendants been concerned about Thomas’s academic future from

the outset, his transfer would not have been necessary. It is far too late for these

Defendants to attempt to take the high ground and they are only attempting to do so

as a matter of litigation strategy.

B. Defendants violated Plaintiff’s Substantive Due Process Rights

Defendant’s response asserts that Plaintiff has failed to identify any case law

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to show that his right to substantive due process has been violated. In an attempt to

fool this Court into believing that the law is on their side, Defendants proceed to list

a variety of non-binding case law, none of which addresses the rule actually involved

in this case. The fact that a court in Louisiana or Illinois may have once decided

against a student in a lawsuit involving eligibility is irrelevant. Those courts have

no authority over this Court and those courts were not addressing the very specific

MHSAA rule that Plaintiff now challenges.

There is currently no evidence in this record that MHSAA had any reason, let

alone a rational reason, for drafting the rule it now relies on. Plaintiff will prove that

the rule is not rational by developing this factual record and then making the

applicable legal arguments when the record is sufficiently developed. To take

Defense counsel’s mere word regarding the necessity and rationality (and thus,

validity) of this rule, however, would be both improper and unnecessary. If there is

one thing the parties agree on currently, it is that the Constitution and the rights that

it affords are supremely important. It is for that reason that it would be improper to

make a substantive ruling on the merits of Plaintiff’s case on the basis of inapplicable

case law.

Further, while Plaintiff will be able to prove that his substantive due process

rights have been violated, Plaintiff additionally contests Defendants’ assertion that

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Plaintiff will not be able to show that any fundamental right has been violated in this

case. While the road may be long, Plaintiff’s counsel has no apprehension about

challenging any case law on which Defendants could rely, whether in this Court or

any higher Court. Likewise, should discovery prove that Defendants violated other

rights of Plaintiff’s, such as his right to equal protection under the law, Plaintiff’s

counsel is prepared to make whatever amendments are necessary to the pleadings in

order to pursue any and all claims supported by the evidence. There are both long-

term and short-term ramifications to this case, and this dispute is not going to be

resolved quickly. The purpose of the present motion is to ensure that Thomas does

not needlessly suffer while the lawyers and the Courts debate about his rights.

C. Plaintiff will be irreparably harmed if this Court does not grant

this motion

As is explained above, litigation regarding Constitutional rights is rarely fast

or easy. Every day from January 15th on that Plaintiff is not permitted to participate

in athletics is a day that Plaintiff’s rights continue to be violated. By the time this

Court and the appellate courts are done deciding the merits of this case, Thomas’s

senior year will be over and his college career will have begun. While other students

will benefit from the final rulings in Thomas’s favor, he should not be made to suffer

while he bravely fights this injustice. Simply put, where an issue of a high school
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student’s Constitutional rights is involved, there is no reason to not err on the side

of caution and allow that student to have the full benefits of enrollment in his school

while the slow wheels of justice turn.

As the Supreme Court has explained, "The key word in this consideration is

irreparable. Mere injuries, however substantial in terms of money, time and

energy necessarily expended in the absence of a stay, are not enough. The possibility

that adequate compensatory or other corrective relief will be available at a later date,

in the ordinary course of litigation, weighs heavily against a claim of irreparable

harm." Sampson v. Murray, 415 U.S. 61, 90, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974).

Here, there is no action that can be taken at a later date that will remedy this wrong.

If Thomas is not permitted to join his team now, and his later determined to have

had his rights violated, that determination will not take away the fact that he was

unjustly prevented from fully participating.

D. Nobody will be harmed by the grant of a preliminary injunction

Contrary to Defendants’ response, there will not be any substantial harm to

any party or non-party if this motion is granted. Defendants, whose athletic

programs have long benefited from the participation of transfer students, are trying

to tell this Court that the competitive balance favors denying this motion and that the

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grant of this motion harms other student athletes. The opposite is true. Defendants

have sent a very loud message to children throughout this state: if you wish to pursue

a better academic future for yourself, you do so at the jeopardy of your ability to

participate in extra-curricular activities. There are other students watching this case.

Those students may be in inferior schools and may wish to seek a better future for

themselves, as Thomas did. If those students continue to see that their decision to

transfer will necessitate giving up the right to participate in activities with their

classmates, they will only be dissuaded to act in their best interest. And who will

benefit? The coaches, teachers, athletic directors, superintendents, principals and

officials who seek to maintain the success of their athletic programs regardless of

the best interests of the children they are supposed to serve.

Conclusion

This Court need not decide, at this stage, whether Defendants violated

Plaintiff’s constitutional rights. Such a determination would be impossible where

no discovery has been had and Defendants have made no showing regarding the

rationality of their rule. While Plaintiff will ultimately prevail on his Constitutional

arguments, the more important question for the Court now is whether a preliminary

injunction (or, if the Court finds appropriate, a temporary restraining order), should

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be issued while the parties litigate the important subjects presented by this case. The

answer, if this Court desires to avoid harm or injustice, is certainly in the affirmative.

Respectfully submitted,
JOHNSON LAW, PLC
By: _/s/ Ven R. Johnson______________
VEN R. JOHNSON (P39219)
CHRISTOPHER P. DESMOND (P71493)
Attorneys for Plaintiff
535 Griswold Street, Suite 2632
Detroit, MI 48226
313.324.8300
vjohnson@venjohnsonlaw.com

/s/ Steven Fishman

Dated: January 10, 2018
STEVEN FISHMAN (P23049)
Attorney for Plaintiff
615 Griswold Street, Suite 1125
Detroit, Michigan 48226-3910
(313) 962-4090/Fax: (313) 962-8068
sfish6666@gmail.com

CERTIFICATE OF SERVICE

I hereby certify that on January 10, 2018, I presented the foregoing paper to

the Clerk of the Court for filing and uploading to the ECF system, to which all

parties in this case receive service.

By: /s/ Ven R. Johnson